Calcutta High Court (Appellete Side)
S.P. International Pvt. Limited vs Future Retail Limited on 24 November, 2021
Author: I.P. Mukerji
Bench: I.P. Mukerji
3 24.11.2021 IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(COMMERCIAL DIVISION)
F.M.A.T. 620 of 2021
WITH
CAN 1 of 2021
S.P. International Pvt. Limited.
Vs.
Future Retail Limited
Mr. Rudranath Bhattacharyya
Ms. Suchismita Chatterjee
Mr. Malay Kumar Seal ... For the Appellant.
Mr. Debnath Ghosh
Mr. Arindam Guha
Mr. Suvasish Sengupta
Mr. S. Chatterjee .... For the Respondent.
We formally admit the appeal.
As the point involved is very short, we propose to dispose of the appeal and the stay application (CAN 1 of 2021) today, dispensing with all formalities.
The appellant lessor filed a suit in the learned court below praying for eviction of the respondent lessee and for other reliefs.
In the suit an interim application was made by the lessor for a direction upon the lessee to pay arrears and current rent as occupation charges. The application was moved ex parte. The learned judge refused to pass an ex parte interim order.
This appeal was preferred and moved before the S.D. vacation bench on 26th October, 2021. The vacation bench directed the respondent to pay Rs.1 crore to the appellant and posted the matter before the regular bench.
That is how this appeal and application have 2 come up before us.
We are also told that an application under Section 9 of the Arbitration and Conciliation Act,1996 has been filed by the appellant and some orders passed therein. However, learned counsel for the appellant submits that his client would withdraw the Section 9 application.
The issue before us is confined to payment by the respondent of arrear rent and occupation charges pending hearing of the suit.
We have perused the notice of termination of the lease issued by the advocate on record for the appellant on 16th September, 2021 terminating the lease after 30th September, 2021 and asking the respondent to quit the premises and deliver its vacant possession to the appellant on 1st October, 2021.
It is now fairly well settled that in such a proceeding the court can direct, as an interim measure, the lessee to deposit the arrear rent and occupation charges at the rate of rent last paid, pending trial of the suit.
An argument which is raised by the respondent but much contested by the appellant is that the period for which the arrear rent is due was when all the business activities remained suspended due to the Covid 19 pandemic, imposition of lockdown etc. and that there 3 should be remission of rent for that period Pursuant to the order of the division bench dated 26th October, 2021, the respondent has made payment of Rs.1 crore to the appellant. Mr. Ghosh submits that the occupation charges for October, 2021 at the rate of rent last paid has also been paid to the appellant.
Mr. Bhattacharyya admits that Rs.3.5 crores has been received by the appellant further to the orders in the Section 9 application.
As an interim measure, without prejudice to the rights and contentions of the parties, we direct that for the time being the respondent shall pay fifty percent of the arrear rent to the appellant as occupation charges in two equal installments by 15th December, 2021 and 15th January, 2022 respectively.
The current occupation charges at the rate of the rent last paid shall have to be paid punctually.
We appoint Mr. Arindam Banerjee, Advocate(98317 04444(M) as a Special Officer at a
remuneration of 1200 Gms to be shared equally by the parties to calculate the rent outstanding upto 30th September, 2021 and deduct therefrom all payments made in this proceeding and in the Section 9 proceeding except the occupation charges for October, 2021 said to have been paid. The calculation as made by the Special 4 Officer shall be final and binding on the parties. Installments as directed herein shall be paid according to that calculation.
We clarify that the rent for the arrear period will be taken as Rs.50,14,263/- per month and fifty percent be calculated accordingly.
We also clarify that whether on the basis of the force majeure clause in the agreement the respondent would be entitled to full or partial waiver of the rent during the COVID 19 pandemic has to be decided at the trial. The respondent has been directed to deposit fifty percent of the agreed rent for the arrear period as an interim order.
All points are kept open before the learned trial court.
As affidavits are not invited, the allegations in the stay petition are deemed not to be admitted.
The appeal (FMAT 620 of 2021) and the connected application (CAN 1 of 2021) are disposed of.
The interim application before the learned trial judge is also disposed of.
The parties shall bring this order to the notice of the learned judge in the court below so that a formal order can be recorded by that court disposing of that interim application before it. This will not prevent the appellant from filing a further interim application to claim 5 any unpaid occupation charges or for any other relief.
The special officer will file a report in this court by 6th December, 2021 with copies circulated to the parties.
Liberty to apply to take exception to the report of the special officer.
(I.P. Mukerji, J.) (Aniruddha Roy, J.) 6